WEDNY MURPHY: With courts, common sense isn’t so common

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By Wendy Murphy

The Patriot Ledger, Quincy, MA

By Wendy Murphy

Posted Mar. 15, 2014 at 2:00 AM

By Wendy Murphy
Posted Mar. 15, 2014 at 2:00 AM

» Social News

COMMENTARY – The Supreme Judicial Court last week ruled that Massachusetts’ “upskirting” statute did not apply to a man who was caught covertly trying to take cell phone photographs of the crotch area underneath a woman’s skirt. The woman was riding the MBTA at the time and was fully clothed. Putting aside whether the guy was a pervert for his own sake, or thought he could sell such pictures to fetish websites, it’s clear the perpetrator believed he was doing something illegal and offensive to his victim. Thus, while the guy was found not guilty of a crime, and apparently has no prior criminal record, people – especially parents – have a right to judge him harshly. And in light of reports that say the man has volunteered with young girls involved in sports, parents are wise to prevent him from gaining access to their children, especially girls.

As for whether it is now legal in Massachusetts to take upskirting photos, the answer is no because the Legislature has since fixed the problem by enacting a new law that does cover “upskirting,” in a vote that went through the House and Senate faster than the perpetrator’s shutter speed.

Still, it’s worth talking about why the SJC decided the case the way it did because, though unanimous, the ruling strains common sense.

At a basic level, the court’s decision was simply about its interpretation of the words “nude or partially nude,” because that’s the phrase the Legislature used to describe who is protected by the law. The SJC made easy work of the analysis, concluding without much discussion that because a woman dressed in a skirt and top riding the T is neither “nude” nor “partially nude,” and because such a person has no expectation of privacy on the T, the statute doesn’t apply.

To be sure, nobody would ever look at a fully clothed woman on the T and say, “she is partially nude.” But the skin underneath her clothing is “nudity” and context matters when deciding whether “nudity or partial nudity” exists in a particular fact pattern.

Just as a woman can breastfeed a child without getting arrested for indecent exposure, even though showing one’s breasts in public otherwise is a crime, context matters.

The SJC was no doubt concerned that if a fully dressed woman can be “partially nude,” then who isn’t “partially nude?” And what could that lead to in terms of unintended consequences and prosecution of people who don’t deserve it? The only not-nude people would be the ones dressed in those stretchy full-body Spiderman suits that were all the rage last Halloween. That kind of overly broad sweep of statutory legalese sometimes forces courts to overturn even seemingly appropriate convictions to protect against violations of constitutional rights.

Page 2 of 2 - Of course technology matters as much as the meaning of words because if we one day develop X-ray vision glasses, all bets are off. People will be taking “nude” photos of each other with abandon and with impunity.

Between now and then, the challenge for legislators is not to worry so much about the definition of “nude or partially nude” but to focus on the way pervasive access to cameras that don’t even look like cameras may be incentivizing people to do things they might not otherwise do if it weren’t so easy to violate the law covertly. Whatever parameters the law creates, police cannot investigate or punish that which victims themselves cannot detect. Lawmakers should also consider enacting statutes that criminalize intrusions upon personal autonomy, to send a message about the profound value inherent in allowing each individual to decide for him or herself who is allowed access to their private information and body parts.

The SJC’s ruling doesn’t address these overarching issues, and technology had little to do with the court’s analysis because whether the man whose conviction was overturned had used a camera phone or a Polaroid from 40 years ago, the decision would have been the same. A fully clothed woman on the T is neither “nude” nor “partially nude” no matter what she is “wearing or not wearing” under her skirt, the court said.

That upskirting has become so prevalent reflects our culture’s decline in decency more than its advancement in technology. Which means the selfish motivations of sex offenders will remain unaffected by academic debates about what “nude” means so long as personal autonomy is not adequately protected in law.

Wendy Murphy is adjunct professor of law at New England Law|Boston and a well-known television legal analyst. A former prosecutor, Murphy specializes in the representation of crime victims in civil and criminal litigation. Her first book “And Justice For Some” was published in 2007.Read more of her columns at wendymurphylaw.com.